PER CURIAM.
Plaintiff Elaine Rabbitt appeals from an order entered by the Law Division on October 12, 2012, dismissing her complaint against defendants Timothy Driscoll (Driscoll), Loretta Weinberg (Weinberg), the Office of the Attorney General of New Jersey (the OAG), and Deputy Attorney General Vincent Militello (Militello). Plaintiff also appeals from an order entered by the Law Division on March 18, 2014, granting summary judgment in favor of defendant Marie Gillman (Gillman). We affirm.
We briefly summarize the relevant facts. In September 2005, the Bergen County Democratic Party conducted a special election to fill the seat of retiring State Senator Byron Baer. Weinberg, who was then a member of the State Assembly, was a candidate for the position, as was Charles "Ken" Zisa. Sometime prior to the election, Kevin Clancy, the Chairman of the Democratic County Committee of Bergenfield (the Committee) received five letters from persons indicating that they were resigning from the Committee, which rendered them ineligible to vote in the special election.
Driscoll and Gillman were informed of these letters on the date of the election. Steven R. Rothman (Rothman), who was then a member of Congress from Bergen County, presided at the special election and determined voter eligibility. Rothman spoke with Driscoll and Gillman. They said they had not signed the letters and did not intend to resign from the committee.
A Bergen County grand jury later charged plaintiff and Dennis Mulligan (Mulligan) with fourth-degree forgery, contrary to
In June 2009, plaintiff filed a motion in the Law Division to dismiss the indictment. Plaintiff argued that the State had not presented the grand jury with sufficient evidence to establish probable cause for the forgery charge. She argued that the State had not shown, with expert testimony, that she "made completed, executed, authenticated, issued or transferred" Gillman's purported resignation letter. Plaintiff also argued that the State failed to present the grand jury with the findings of its handwriting expert that "[c]ertain types of evidence cannot be observed on reproductions of writings" and that "the handwritten signature and date on the resignation letter did not match" plaintiff's signature.
The Law Division judge denied the motion. In a written decision dated July 22, 2009, the judge noted that the State had presented the grand jury with the report of a handwriting expert, who had opined within a "reasonable degree of certainty" that it was "highly probable" plaintiff had written the printed name on the letter. The judge found this evidence was sufficient to establish a prima facie case of forgery under
In addition, the judge found that the State had not failed to present any exculpatory evidence to the grand jury. The judge noted that the statement by the handwriting expert "on the potential difficulty in analyzing a photocopy would not have directly negated either defendant's guilt in this matter," or the possibility that another person was involved in the forgery.
The judge also noted that the grand jury did not need to be informed that the handwriting expert only matched plaintiff's handwriting to Gillman's printed name, and not to the cursive signature or the date. The judge observed that this evidence had "no bearing on the fact that [plaintiff's] handwriting was matched to the printed name on" the Gillman resignation letter.
In addition, the judge rejected plaintiff's contention that the grand jury should have been informed that there were other "potential suspects" for the alleged forgery. The judge pointed out, however, that the grand jury had been told in general terms that the handwriting expert had considered "other names" for analysis with regard to the resignation letters.
The judge wrote that, even if the grand jury had not been made "sufficiently aware" that there were other potential suspects, this would still have no bearing on the expert's conclusion that the handwriting on one of the letters matched plaintiff's handwriting.
On February 8, 2011, the day before the trial was scheduled to begin, the State provided plaintiff's attorney with a copy of a previously-undisclosed certification by Gillman, which was dated September 15, 2005. In that certification, Gillman stated she had resigned her seat on the County Committee in January 2005.
However, in the cover letter accompanying the certification, Militello, who was handling the matter for the State, wrote that it was his understanding Gillman would testify she signed the certification at the behest of her husband, and the statements in the certification were not true. Militello noted that Gillman's husband would corroborate her testimony, and indicate that he believed plaintiff had given him the unsigned document.
The trial began on February 9, 2011. Prior to opening statements, plaintiff moved to dismiss the indictment based on the State's alleged failure to present Gillman's certification to the grand jury and provide it to defense counsel. The trial judge concluded that the certification was not exculpatory. However, the judge ruled that, because the certification had been provided to defense counsel the day before trial, it could not be used by the State but plaintiff could use it for her defense if she wanted to do so.
After the State rested, plaintiff moved for a judgment of acquittal. The judge denied the motion. The judge noted that the handwriting expert had testified that it was "highly probable" that plaintiff printed Gillman's name on the purported resignation letter, and this was sufficient to establish a prima facie case of forgery. At the end of the case, the judge found plaintiff not guilty of forgery.
On May 25, 2012, plaintiff filed a complaint in the Law Division naming Weinberg, Driscoll, Gillman, Bergen County (the County), the OAG, and Militello as defendants. Plaintiff asserted a claim of malicious prosecution against Weinberg, Driscoll and Gillman, and a claim of abuse of process against Weinberg and Driscoll.
Plaintiff further alleged that the OAG violated her "civil rights" by failing to train employees to disclose exculpatory evidence. She claimed that Militello had violated her "civil rights" by intentionally and recklessly withholding exculpatory evidence from the grand jury and her defense attorney.
In addition, plaintiff alleged that the County violated her constitutional rights to free speech, political association and assembly by terminating her employment. She also claimed that the County had breached its implied covenant of good faith and fair dealing by suspending her employment without pay after she was indicted, and later terminating her employment.
Defendants filed answers denying liability, and asserted various affirmative defenses. In July 2012, Driscoll filed a motion to dismiss pursuant to
On October 12, 2012, the court granted the motions and dismissed the claims against Driscoll, Weinberg, the OAG and Militello. In January 2014, Gillman filed a motion for summary judgment. On March 18, 2014, the court granted Gillman's motion. Plaintiff's appeal followed.
On appeal, plaintiff raises the following arguments:
Plaintiff argues that the trial court erred by dismissing her malicious prosecution claims against Driscoll, Weinberg and Gillman and the claims against the OAG and Millitello based on the alleged failure to provide the grand jury and defense counsel with exculpatory evidence. Plaintiff argues that the trial court erroneously determined that she was bound by decisions made by the judges in the criminal case on issues essential to these claims. We disagree.
As we noted previously, the trial court dismissed the claims against Driscoll, Weinberg, the OAG and Militello pursuant to
In ruling on a motion to dismiss under
In addition, summary judgment should be granted when there is no genuine issue of any material fact in dispute, and the moving party is entitled to judgment as a matter of law.
We are convinced that the court correctly determined that plaintiff's malicious prosecution claim failed as a matter of law. It is well-established that a finding of probable cause is an absolute defense to claim of malicious prosecution.
As we stated previously, plaintiff was charged with fourth-degree forgery under the indictment, and the indictment "creates a presumption of probable cause as a matter of law."
In addition, in the criminal proceeding, plaintiff moved for a judgment of acquittal, which required the court to apply the standard under
The trial judge denied plaintiff's motion, thereby again effectively deciding that there was probable cause for the forgery charge.
Plaintiff contends that the trial court in this case erred by invoking the doctrine of collateral estoppel, and she should have been permitted to re-litigate the decisions by the motion judge and the trial judge in the criminal case.
Collateral estoppel may preclude a party from re-litigating an issue where
Here, the issue of probable cause was litigated and decided in the criminal case. A final judgment was entered in that matter, finding plaintiff not guilty of forgery. In addition, the determinations that the State had established a prima facie case before the grand jury and at trial were essential to the final judgment because, without those determinations, the case would not have proceeded to trial or to the final judgment of acquittal. Moreover, plaintiff was a party at her criminal trial.
Thus, the trial court correctly found that plaintiff was estopped from re-litigating the issue of probable cause in this matter. The Court's decision in
The federal court found that the defendants had probable cause to charge, arrest and prosecute the plaintiff.
In this case, the issue of whether there was probable cause to charge plaintiff with fourth-degree forgery had been decided in plaintiff's criminal case. The trial court correctly determined that plaintiff was barred from re-litigating that issue in this matter. The court correctly found that plaintiff's claims of malicious prosecution against Driscoll, Weinberg and Gillman failed as a matter of law.
The trial court also correctly determined that plaintiff's claim that the State wrongfully failed to provide the grand jury and her attorney with exculpatory evidence failed as a matter of law. As we stated previously, plaintiff had raised this issue in her criminal case, and her motions to dismiss the indictment on these grounds had been denied by the motion judge and trial judge.
The trial court correctly applied collateral estoppel and determined that plaintiff could not re-litigate that issue in this case. The court properly found that plaintiff's claim against the OAG and Militello for failure to provide exculpatory evidence to the grand jury and defense counsel failed as a matter of law.
Plaintiff further argues that the trial court erred by dismissing her malicious abuse of process claim. Again, we disagree. The trial court found that this claim failed as a matter of law because plaintiff did not establish the absence of probable cause for the criminal charge. We are convinced that the court correctly determined that plaintiff's malicious abuse of process claim must be dismissed, but not because there was probable cause for the criminal charge. Rather, dismissal was required because a claim of malicious use of process applies to civil actions, not criminal matters.
The plaintiff in such an action must establish "the civil counterpart" of the elements of a claim for malicious prosecution.
Because plaintiff's claim pertains to the criminal matter, not a civil action, her claim of malicious abuse of process failed as a matter of law.
Next, plaintiff argues that the trial court erred by failing to consider her claims that her rights to political speech, political association and to be free of political retaliation had been violated. The complaint makes clear, however, that these claims were asserted against the County, not the other defendants.
As we noted previously, plaintiff's claims against the County have been resolved. Therefore, in addressing the motion to dismiss filed by Driscoll, Weinberg, the OAG and Militello, and Gillman's motion for summary judgment, the trial court was not obligated to address these claims.
Plaintiff argues that the trial court erred by finding that Militello is entitled to absolute prosecutorial immunity. We cannot agree.
A prosecutor is entitled to absolute immunity for all actions associated with the judicial process, and is shielded from liability for any wrongdoing allegedly committed while acting as an advocate for the State.
However, the allegations pertain to actions Militello allegedly took while acting as advocate for the State.
Plaintiff maintains that Militello is not entitled to absolute immunity in this case because he was acting as an investigator, rather than a prosecutor. The argument is without sufficient merit to warrant discussion.
In addition, plaintiff argues that the trial court erred by finding that she could not assert a claim against the OAG under the New Jersey Civil Rights Act ("NJCRA"),
The NJCRA does not specifically define the term "person" to include the State or any of its departments or agencies. However,
Thus, unless a specific enactment provides otherwise, the term "person" in a statute does not include the State, except when referring to ownership of certain property.
Moreover, there is no indication in the NJCRA that the Legislature intended to waive its sovereign immunity and authorize civil actions against the State, its departments or agencies for alleged violations of constitutional or statutory rights. Indeed, by its terms, the NJCRA only permits the filing of a private cause of action against "persons" acting under color of law.
In this case, plaintiff alleges that the OAG violated her constitutional rights by failing to properly train its attorneys in the handling of allegedly exculpatory evidence. The trial court correctly determined that such a claim cannot be asserted against the OAG under the NJCRA because the OAG is not a "person" under that statute.
In arguing that the NJCRA should be interpreted so that the OAG is deemed a "person" under the NJCRA, plaintiff relies upon cases which hold that municipalities and other local government units can be considered "persons" under 42
Affirmed.